C A GEORGE Vs. CHACKO JOSEPH

JUDGEMENT

(1.) Claiming that she was his wife and that the second counter petitioner was her child born of him, the first counter petitioner filed M. C. No. 11 of 1951 in the Alleppey Division First Class Magistrate's Court against the revision petitioner for maintenance for herself and the second counter petitioner. The learned Magistrate issued notice to the revision petitioner through post and it was returned unserved with an endorsement that he refused to accept the same. Thereupon the Magistrate proceeded ex parte against the revision petitioner and passed an order directing him to give maintenance to the counter petitioners. Within the time allowed by law, the revision petitioner appeared before the Magistrate and applied under the proviso to Clause 6 of S.488 of the Code of Criminal Procedure for setting aside the ex parte order. The learned Magistrate dismissed the application holding that the case could not be reopened as the endorsement on the notice sent from the court was that it was refused by the revision petitioner. This revision petition is filed against the order of the Magistrate refusing to reopen the case.

(2.) Under the Proviso to Clause 6 of S.488 of the Code of Criminal Procedure any ex parte order made under that section has to be set aside for good cause shown on application made within three months from the date thereof. It is admitted in this case that the application for setting aside the ex parte order has been made within three months of that order. The only question for decision is whether the revision petitioner has shown good cause.

(3.) Except the bald statement on the notice issued through post that the revision petitioner refused to accept the same there is no evidence to prove that it was taken to and refused by him. To issue notice through post is not a procedure warranted by the Code of Criminal Procedure for compelling appearance of parties in court. The ordinary process for compelling appearance is in the first instance to issue summons under S.68 of the Code of Criminal Procedure; and when summons so issued cannot be served it is the duty of the court to issue a warrant. When the warrant also cannot be executed the court has to proceed under S.87 and 88 and issue a proclamation and attach the property of the person who is evading service of process. In an exactly similar case, Gurnam Singh v. Mt. Datto, AIR 1950 East Punjab 20, it was held: